A Real Battle Over the Constitution

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November 2, 2005

The nomination of Samuel Alito to the Supreme Court provides a rare opportunity to have a straightforward debate about what legal interpretation is and should be. Alito is known in certain legal circles as “Scalito” because his views on such questions are said to mirror those of Justice Antonin Scalia.

A nice summation of Scalia’s views is provided by Scalia himself in the November issue of the magazine First Things, where Scalia has published a review essay about Steven D. Smith’s new book, “Law’s Quandary.” (Smith’s book is the best thing of its kind published in many years, and will interest anyone who cares about this debate. Scalia’s essay can be found at www.firstthings.com.)

Scalia argues that legal interpretation consists of figuring out what a reasonably well-informed reader of a legal text would have thought the text meant at the time of its enactment. He rejects the idea that a legal text means what its author(s) intended it to mean, or that its meaning can change over time, or that previous judicial (mis)interpretations of a text’s meaning in themselves necessarily have the force of law (the legal doctrine, central to the common law system, known as “stare decisis.”)

There are a number of problems with this view. First, it’s often going to be difficult to determine what Scalia’s hypothetical reasonably well-informed reader would have thought a legal text meant. This will especially true when, as in the case of the Constitution, almost all of the parts of the document that give rise to litigation are between 140 and 217 years old.

In his review, Scalia criticizes both Smith and me for arguing that a text always means what its author meant by it, in part because he recognizes that determining what a text’s author(s) meant can be hard to do. Yet trying to determine what an author meant at least involves investigating an actual historical question. The issue of what a hypothetical “reasonable reader” would have understood a text to mean is, by contrast, a far murkier counterfactual matter, that lends itself much more readily to the kind of judicial manipulation of textual meaning Scalia deplores.

Second, even if we were to agree that Scalia’s preferred interpretive method is less prone to abuse than the alternatives, actually employing it would produce results that most Americans would consider completely unacceptable. Taken seriously, Scalia’s view of constitutional interpretation would require finding that much of the modern federal government is unconstitutional (one example of many: a large percentage of current federal law depends on Congress exercising its powers under an interpretation of the Commerce Clause that Scalia’s method flatly rejects).

But the biggest problem with Scalia’s view of legal interpretation is that, as a matter of social description, it’s highly inaccurate. It’s not true that most or even a large minority of lawyers, judges and lawmakers accept it. This creates, to use Smith’s term, two quandaries. The first is that if there’s no agreement as to what legal interpretation is, then choosing this or that interpretive method must be a political act, which is just what Scalia’s version of legal interpretation claims to avoid. (Ironically, Scalia’s argument reveals that supporters of “originalism” in constitutional interpretation don’t even agree on the correct interpretation of that word).

Scalia could reply that most lawyers and lawmakers are simply wrong about what law actually is. Yet if the law exists independently of our beliefs regarding it, what (or perhaps more accurately who) maintains its objective, independent character? Smith implies, correctly, that any coherent answer must involve a three-letter word that begins with “g” and ends with “d.” It would be interesting to learn if Justice Scalia and Judge Alito agree.

(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)

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